| Guarantee is an important way to ensure the smooth realization of creditor’s rights.Among many guarantee methods,creditors are more inclined to choose the combination of both material guarantee and human guarantee to guarantee their own creditor’s rights.The question that has long troubled the theoretical and practice circles in the mixed joint guarantee system is whether the guarantor can request a share with other guarantors after assuming the guarantee liability.Article392 of the Civil Code does not answer the questions on this issue,but continues to adhere to the description of Article 176 of the Property Law.And in the property law of the article 176 of the real meaning is not understand,the Supreme People’s Court on the application of the civil code of the People’s Republic of China on the interpretation of the guarantee system of article 13 of the guarantor shall enjoy the right of recourse between the guarantor in the same contract signature,seal or according to the mark,partial affirmation,partial negative scheme by the academic community.The Supreme People’s Court has its views on the right of recovery,criticizing the academic community.At present,there are affirmation,negation and compromise.Each theory also draws its own conclusions from different perspectives.Indeed,the question as to whether the right of recovery exists is a pending conflict of value puzzle.The true meaning of Article 392 of the Civil Code is actually relatively vague.It is doubtful whether the right of recovery exists,and whether the guarantor is allowed to violate the autonomy of intention and conforms to the principle of fairness and efficiency.If the recovery is allowed between the guarantors,it is urgent to find the basis of the claim.This paper holds that the conclusion as to whether the existence of the right of recovery exists cannot be drawn in the current law provisions,and the positive conclusion can be drawn from the perspective of the value judgment and the real reasons for the existence of the joint guarantee system.Through the study of the legislative development history of the mixed common guarantee system,and by comparing the legislation before and after the civil code,the pain points and difficulties of the legislators in the legislative process are found.By summarizing the arguments of the right of recourse in judicial practice,we can find out the common values in the minds of the judge and the understanding of the provisions of the law.Through comparative analysis,it is found that the number of judgment affirming the right of recovery is much greater than the judgment denying the right of recovery.Taking the cases before and after the civil Code as a comparison,it is found that even when the civil Code comes into force,there are still judges who uphold their inner values to support the reasonable existence of the right of recovery.This further explains the value and significance of the right of recovery in existence.In the process of sorting out the affirmation,negation and compromise of the academic circle,through summary and analysis,it is found that allowing the guarantor to recover is not only against the original intention of the legislator,but also against the autonomy of the parties,and is in line with the principle of fairness and efficiency.Although the negative claim that denying the right to recover is better in efficiency,it obviously ignores that the real value of the law should be based on fairness.At the value level,it is certain to be more convincing.In fact,meaningless contact is not a reason to deny the existence of a right of recovery.In the joint implementation of the act,even if the parties do not agree,they should also bear the consequences for the act.In the latest judicial interpretation of the guarantee system,the guarantor who signed first may also have no contact with the guarantor who signed later,but they still have to bear joint and several debts.This just proves that the lack of interesting contact between guarantors does not justify the guarantor from guaranty liability.Even the negative statement cannot deny the fact that the guarantors constitute a guarantee community and form an objective mutual guarantee between the guarantors.By studying the "same level theory",we also conclude that liability does not require meaningful contact between guarantors.This is consistent with Article 1171 of the Civil Code,respectively tort bear joint and several liability.In essence,the guarantor jointly assumes guarantee risk is the inherent requirement of mixed joint guarantee.From the perspective of comparative law,the right of recovery has been recognized in all the countries or regions recognizing the equal legal status of the guarantor,which is of reference significance for China’s legislation.Under the background that the Civil Code has become the current law,it is confusing to discuss that the guarantors should be stipulated joint and several debts.Under the background of the current law,we analyze the purpose of the establishment of the joint debt and find the high consistency between the guarantor and the joint debtor.Using interpretation theory,the relationship between guarantors is interpreted as joint debt,and the guarantors rely on joint and several debt for internal recovery,so as to balance the interest relationship between guarantors.Indeed,the affirmative recovery needs a scientific,reasonable and fair guarantee responsibility distribution scheme,and the proportional value division is the distribution plan that best reflects the fairness and protects the interests of the guarantors of all parties.Since the value of the collateral is easily affected by the market economy,it is quite important to determine the time basis of the value of the collateral.Through examples of various scenarios of the distribution of the actual situation of analysis,find the most protective time on the guarantor,at the same time innovation to the guarantor goodwill or malicious as a difference,to maximize the protection of the guarantor interests,find the most to protect the guarantor time as the time to determine the value of the guarantee.At the same time,the paper discusses the responsibility share of the guarantor under the special circumstances,and obtains the responsibility plan most in line with the original intention of the guarantee. |
